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Summary of NLRB Decisions for Week of June 1 - 5, 2015

The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of Public Affairs at Publicinfo@nlrb.gov or 202‑273‑1991.

The Board affirmed the Administrative Law Judge’s findings that the Respondents violated the Act by prohibiting employees from wearing a variety of union insignia, including buttons and stickers reading “WTF Where’s the Fairness,” “FTW Fight to Win,” “Cut the Crap! Not My Healthcare,” and “No on Prop 32.” The Board found that none of the buttons or stickers contained content so vulgar and offensive as to lose the protection of the Act and that the Respondents had not demonstrated any special circumstances that justified their prohibition on the insignia. Administrative Law Judge John J. McCarrick issued his decision on April 23, 2014. Charges filed by Communication Workers of America, AFL-CIO. Members Miscimarra, Hirozawa, and McFerran participated.

A Board panel majority consisting of Chairman Pearce and Member McFerran affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(5) by unilaterally discontinuing annual raises required under the collective-bargaining agreement when the agreement expired. The majority agreed with the judge that contract language requiring payment of annual raises during the term of the agreement did not clearly and unmistakably waive the Union’s statutory right to bargain over discontinuance of the raises upon contract expiration. In dissent, Member Johnson would have found that the Respondent’s duty to give raises was limited to the duration of the contract, and thus that it acted lawfully by discontinuing the raises after the contract expired.

The Board unanimously agreed with the judge that the Respondent violated Section 8(a)(5) by failing to provide the Union with requested information concerning the Respondent’s unit operations councils. The majority (Chairman Pearce and Member McFerran) affirmed the judge’s finding that the Respondent unlawfully failed to provide and/or timely provide information regarding nurses’ absences due to work-related illnesses. Member Johnson, dissenting, would have found that the Respondent did not categorically refuse to provide the information, but merely asked for clarification of the Union’s request, which was not forthcoming.

The Board panel majority (Chairman Pearce and Member McFerran) agreed with the judge that the Respondent violated Section 8(a)(5) by failing either to provide the Union with certain confidential information relating to the discharge of a nurse or to attempt to accommodate the Union’s need for that information. However, the same majority reversed the judge and found that the Respondent’s attempt to accommodate the Union’s need for other information concerning the discharge was untimely. Dissenting, Member Johnson would have found the Respondent’s attempts at accommodation both reasonable and timely, as they were made several months before the arbitration of the discharge grievance. Charges filed by Service Employees International Union, Local 199. Administrative Law Judge Ira Sandron issued his decision on April 25, 2007. Chairman Pearce and Members Johnson and McFerran participated.

On a stipulated record, the Board declined to assert jurisdiction over the Respondent, an Indian tribe in its capacity as operator of the Winstar World Casino, pursuant to San Manuel Indian Bingo & Casino, 341 NLRB 1055 (2004), enfd. 475 F.3d 1306 (D.C. Cir. 2007). The Board found that application of the Act would abrogate the Chickasaw Nation’s right, contained in the 1830 Treaty of Dancing Rabbit Creek, to be “secure” “from and against all laws” except those passed by Congress under its authority over Indian affairs. Charges filed by International Brotherhood of Teamsters Local 886, affiliated with The International Brotherhood of Teamsters. Members Miscimarra, Hirozawa, and McFerran participated.

The Board denied the Respondent’s motion for summary judgment on the grounds that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. In a concurrence, Member Miscimarra agreed with his colleagues that this case involves genuine issues of material fact that require a hearing, but he also expressed his view that in opposing a respondent’s motion for summary judgment, the General Counsel must identify the material facts in dispute and reasonably justify the need for a hearing. Charge filed by United Mine Workers of America, District 17. Chairman Pearce and Members Miscimarra and McFerran participated.

On December 21, 2012, the Board issued a Decision and Order in this test-of-certification case, reported at 359 NLRB No.45 (2012), granting the General Counsel’s motion for summary judgment on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. Following the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the court of appeals vacated the Board’s Decision and Order and remanded this case for further proceedings consistent with the Supreme Court’s decision.

On December 16, 2014, the Board issued a further Decision, Certification of Representative, and Notice to Show Cause why the General Counsel’s motion should not be granted, providing leave to the General Counsel to amend the complaint to conform with the current state of the evidence, including whether the Respondent had agreed to recognize and bargain with the Union after the December 16, 2014 certification of representative issued. The Respondent filed an answer to the amended complaint and an opposition to the General Counsel’s motion.

The Board granted the General Counsel’s motion, finding that the representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding and that the Respondent did not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding.

The Board rejected the Respondent’s contention, argued for the first time in this proceeding, that the Regional Director was invalidly appointed and without authority to act in this matter. The Board noted that the Respondent’s contention was based on its argument that Member Becker was not validly appointed and, therefore, the Board lacked a quorum on December 13, 2011 when the Regional Director was appointed. The Board found that (1) the Respondent did not raise this issue previously and therefore was estopped from challenging the Regional Director’s authority here and (2) Member Becker’s appointment is not subject to challenge under the Supreme Court’s decision in Noel Canning, supra, and the Board unquestionably had a quorum when the Regional Director was appointed. Charge filed by Local 881, United Food and Commercial Workers. Chairman Pearce and Members Hirozawa and McFerran participated.

On November 21, 2012, the Board issued a Decision and Order in this test-of-certification case, reported at 359 NLRB No. 24 (2012), granting the General Counsel’s motion for summary judgment on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. Following the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the court of appeals vacated the Board’s Decision and Order and remanded this case for further proceedings consistent with the Supreme Court’s decision.

On December 16, 2014, the Board issued a further Decision, Certification of Representative, and Notice to Show Cause why the General Counsel’s motion should not be granted, providing leave to the General Counsel to amend the complaint to conform with the current state of the evidence, including whether the Respondent had agreed to recognize and bargain with the Union after the December 16, 2014 certification of representative issued. The Respondent filed an answer to the amended complaint and an opposition to the General Counsel’s motion.

The Board granted the General Counsel’s motion, finding that the representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding and that the Respondent did not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding.

The Board rejected the Respondent’s contention, argued for the first time in this proceeding, that “[t]he representation election and the certification of the bargaining unit are of no legal force or effect because they were conducted at a time when the Regional Director and the General Counsel were without legal authority to act.” The Board noted that the Respondent’s contention was based on its argument that Acting General Counsel Lafe Solomon was not properly appointed under the NLRA or the Federal Vacancies Reform Act. The Board found that (1) the Respondent did not raise this issue previously and therefore was estopped from challenging the authority of the General Counsel or the Regional Director here; (2) the authority of a Regional Director to act in representation case proceedings is derived a 1961 delegation from the Board, not the General Counsel, and that delegation has never been revoked; and (3) even if the authority of the Acting General Counsel were relevant, the argument that the Acting General Counsel was not properly appointed lacks merit. Charge filed by Local 70, Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCTGM), AFL-CIO, CLC. Chairman Pearce and Members Hirozawa and McFerran participated.

On May 31, 2013, the Board issued a Decision and Order in this test-of-certification case, reported at 359 NLRB No. 124 (2013), granting the General Counsel’s motion for summary judgment on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. Following the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the Board issued an order setting aside the Decision and Order, and retained this case on its docket.

On November 12, 2014, the Board issued a further Decision, Certification of Representative, and Notice to Show Cause why the General Counsel’s motion should not be granted, providing leave to the General Counsel to amend the complaint to conform with the current state of the evidence, including whether the Respondent had agreed to recognize and bargain with the Union after the November 12, 2014 certification of representative issued. The Respondent filed an answer to the amended complaint and an opposition to the General Counsel’s motion.

The Board granted the General Counsel’s motion, finding that the representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding and that the Respondent did not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding.

The Board rejected the Respondent contention, set forth in its answer to the amended complaint that because the Board lacked a quorum from January 4, 2012, until August 7, 2013, under NLRB v. Noel Canning, supra, the Board and its agents could not have certified the Union prior to August 7, 2013. The Board noted that it certified the Union on November 12, 2014. The Board further found that to the extent the Respondent’s answer asserted that the Regional Director lacked authority to process the case prior to August 7, 2013, that argument lacked merit. Charge filed by Residential Laborers Local 55, Laborers International Union of North America. Chairman Pearce and Members Hirozawa and McFerran participated.

MVM, Inc. (05-RD-143548) Bethesda, Poolesville, Gaithersburg, Rockville, and Baltimore, Maryland, June 1, 2015. Order denying the United Security and Police Officers of America (USPOA)’s Request for Review of the Regional Director’s Supplemental Decision and Certification of Representative. In denying review, Member Johnson did not rely on the Regional Director’s suggestion that documents submitted by USPOA in support of its objections do not constitute objectionable conduct under Midland National Life Insurance Co., 263 NLRB 127 (1982). Petitioner—an individual. Union—United Security and Police Officers of America (USPOA). Intervenors—National League of Justice and Security Professionals; International Union, Security, Police and Fire Professionals of America (SPFPA). Members Hirozawa, Johnson and McFerran participated.

SSC Methuen Operating Company LLC, d/b/a Methuen Health & Rehabilitation Center (01-RC-137636) Methuen, MA, June 1, 2015. Order directing Regional Director to count a void ballot, blank on the front with the word "yes" written on the back, as a "yes" vote and issue a revised tally of ballots, and thereafter take appropriate action regarding four determinative challenged ballots. Petitioner—International Association of Machinists and Aerospace Workers, District Lodge 15, AFL-CIO. Chairman Pearce and Members Johnson and McFerran participated.

Paragon Systems, Inc. (10-UC-138113) Birmingham, AL, June 3, 2015. Order denying the Petitioner’s Request for Review as not raising substantial issues as to whether the Regional Director properly dismissed the Petitioner’s petition to clarify all of the Employer’s bargaining units into one state-wide unit. Petitioner—The Protection & Response Officers of America, Inc. Intervenors—Security Police Fire Professionals of America and United Government Security Officers of America International Union, Local 212 (USGOA). Members Hirozawa, Johnson, and McFerran participated.

Keystone Automotive Operations, Inc. (32-RC-137319) Stockton and Union City, CA, June 4, 2015. Order granting the Petitioner’s Request for Review of the Regional Director’s overruling its objection to the conduct of the election regarding manager “ride-alongs” with its drivers prior to the election. The Board remanded the objection to the Regional Director for consideration with other objections currently scheduled for hearing. Member Johnson stated that he would have adopted the Regional Director’s recommendation to overrule the objection without a hearing as within the Regional Director’s sound discretion. Petitioner—International Brotherhood of Teamsters, Local 853. Members Hirozawa, Johnson, and McFerran participated.

Labor for Hire, Inc. (29-RC-132423) Brooklyn, NY, June 4, 2015. Order denying Petitioner’s Request for Review of the Regional Director’s Order Dismissing Petition and Canceling the Election on the ground that it raises no substantial issues warranting review. Petitioner— Consolidated Commercial Workers of America, Local 528, affiliated with NOITU-IUJAT. Chairman Pearce and Members Miscimarra and Hirozawa participated.

Go New York Tours Inc. (02-RC-147813) New York, NY, June 5, 2015. No exceptions having been filed to the Regional Director’s overruling of the Employer’s objection to an election held April 13, 2015, the Board adopted the Regional Director’s recommendations and certified the Petitioner, Transport Workers Union of Greater New York Local 100, AFL-CIO, as the exclusive collective-bargaining representative of the employees in the appropriate unit.

FedEx Freight, Inc. (32-RC-144041) Stockton, CA, June 5, 2015. A unanimous panel of the Board granted the Employer’s request for special permission to appeal but denied the appeal on the merits. The Board found no merit in the Employer’s contention that the Regional Director erred in denying its motion to postpone the scheduled hearing on the Employer’s objections pending a determination on its unfair labor practice charges against the Union. Members Hirozawa, Johnson, and McFerran participated.

The District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America (Tutor Perini Corporation) (02-CB-130379, et al.) New Rochelle and Harrison, NY, June 4, 2015. Order approving a formal settlement stipulation between the individual Charging Party, the Respondent Union, and the General Counsel, and specifying actions the Union must take to comply with the National Labor Relations Act. Charges filed by an individual. Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

Dalton School, Inc., d/b/a Dalton School (02-CA-138611; JD-31-15) New York City, NY. Administrative Law Judge Arthur J. Amchan issued his decision on June 1, 2015. Charge filed by an individual.

United States Postal Service (07-CA-138249 and 07-CA-138262; JD-34-15) New Baltimore, MI. Administrative Law Judge Christine E. Dibble issued her decision on June 5, 2015. Charges filed by Branch 654, National Association of Letter Carriers (NALC), AFL-CIO.